HARI KRISHNA MANDIR TRUST v. STATE OF MAHARASHTRA AND OTHERS

MAHARASHTRA AND OTHERS [INDIRA BANERJEE, J.]

“14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When C the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court G has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in reply from the respondents, and should have proceeded to H

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A try the petition instead of relegating the appellants to a separate suit.” (emphasis supplied)

105Copy pinpoint105. In ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd.13, this Court referring to previous judgments of this Court including Gunwant Kaur (supra) held: - B “19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a C suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for D entertaining a writ petition 2 even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.

27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition: E a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. b) Merely because some disputed questions of fact arise F for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule; c) A writ petition involving a consequential relief of monetary claim is also maintainable.”

106Copy pinpoint106. In the present case, it is not even in dispute that the private road in question did not at any point of time belong to the Pune Municipal Corporation. It is shown to be held by the holders by adjacent Plot Nos. 473 B1, 473 B2 and 473 B3.

13. H (2004) 3 SCC 553

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MAHARASHTRA AND OTHERS [INDIRA BANERJEE, J.]

107Copy pinpoint107. In the facts and circumstances of the instant case, in the light of admissions, on the part of the respondent authorities that the private road measuring 414 sq. was private property never acquired by the Pune Municipal Corporation or the State Government, the respondents had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator. In our considered opinion, the Bombay High Court erred in law in dismissing the Writ Petition with the observation that the land in question had vested under Section 88 of the Regional and Town Planning Act.

108Copy pinpoint108. Section 88 of the Regional and Town Planning Act, 1966 provides: C

“88. Effect of [preliminary scheme].- On and after the day on which a [preliminary scheme] comes into force- (a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, D vest absolutely in the Planning Authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by E Arbitrator; [(c) ***]”

109Copy pinpoint109. Section 88 of the Regional and Town Planning Act cannot be read in isolation. It has to be read with Section 125 to 129 relating to compulsory acquisition as also Section 59, 69 and 65. F

110Copy pinpoint110. Section 125 provides as follows: “125. Compulsory acquisition of land needed for purposes of Regional Plan, Development plan or town planning scheme, etc.- Any land required, reserved or designated in a Regional plan, Development plan or town planning scheme for a public G purpose or purposes including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose [within the meaning of the Right to Fair Compensation and Transparency H

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A in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013)]. [Provided that, the procedure specified in sections 4 to 15 (both inclusive) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and B Resettlement Act, 2013 (30 of 2013) shall not be applicable in respect of such lands.]

111Copy pinpoint111. Section 126 stipulates the mode and manner of acquisition of land acquired to a designate in Regional, Development and Town scheme for a public purpose and the mode of payment of compensation.

112Copy pinpoint112. Section 127 provides that any land reserved, allotted or designated for any purpose specified in any plan under the Regional and Town Planning Act, which is not acquired by agreement within ten years from the date on which a final regional plan or final development plan comes into force, is to be deemed to have lapsed and the land shall be deemed to be released from such reservation. Of course by virtue of sub-section (2) of Section 126 inserted by Amendment by Maharashtra Act No.16 of 2009 on lapsing of reservation or a designation of any land under sub-section (1), the Government shall notify the same by an order published in the Official Gazette. Section 128 enables the Government to acquire lands for a purpose other than the one for which it is designated in any plan or scheme.

113Copy pinpoint113. In our considered opinion, the High Court erred in dismissing the writ petition, misconstruing Section 88 of the Regional and Town Planning Act, by reading the same in isolation from the other provisions of the Regional and Town Planning Act, particularly Sections 65, 66, 125 F and 126 thereof.

114Copy pinpoint114. Section 125 read with Section 126 enables the state/Planning authority to acquire land. On a proper construction of Section 88, when land is acquired for the purposes of a Development Scheme, the same vests in the State free from encumbrances. No third party can claim any G right of easement to the land, or claim any right as an occupier, licensee, tenant, lessee, mortgagee or under any sale agreement. On the other hand, Section 65 referred to above read with Section 66 protects the interests of the owners.

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MAHARASHTRA AND OTHERS [INDIRA BANERJEE, J.]

115Copy pinpoint115. In the absence of any proceedings for acquisition or for purchase, no land belonging to the Appellant Trust could have vested in the State.

116Copy pinpoint116. The High Court also erred in its finding that the modification proposed involved substantial alteration by deletion of a public road and was therefore impermissible. The modification only involved deletion of the name of Pune Municipal Corporation as holder of the private road. The finding that deletion of a public road is a substantial alteration is, for the reasons already discussed above, completely baseless.

117Copy pinpoint117. The appeal is therefore allowed, and the Judgment and order under appeal is set aside. C

118Copy pinpoint118. In exercise of our power under Article 142 of the Constitution of India to do complete justice between the parties,we direct the Respondent authorities to act in terms of the Award dated 16th May, 1972 and delete the name of the Pune Municipal Corporation as owner of the private road in the records pertaining to the Scheme and carry out such other consequential alterations as may be necessary under Section 91 of the Regional and Town Planning Act. The appellant trust shall within a fortnight from the date of this order, give an undertaking to the Planning Authority not to obstruct access of adjacent plot owners through the private road in question. The necessary alteration or modification under Section 91, as directed above, shall be carried out within six weeks from the date of furnishing of the undertaking by the appellant, as directed above.

Divya Pandey Appeal allowed. F